Mayor of Baltimore v. Garrett

Pearce, J., delivered the opinion of the Court. This is an appeal from a decree of Circuit Court No. 2, of Baltimore City, specifically enforcing a contract of sale of a parcel of land in the northeastern section of Baltimore City, containing about twenty-four acres of land, which constituted part of the estate of the late John W. Garrett, and which, in the partition of his estate, was allotted to his daughter, Miss Mary E. Garrett, the present appellee. The bill alleges that on September 28th, 1907, the appellee entered into a written contract with the Mayor and City Council of Baltimore to sell said parcel of land to said Mayor and City Council for a certain stipulated price, to be paid in cash upon the verification of the acreage by the engineer of the Park Board, and the execution and delivery by the appellee to the Mayor and City Council, of a deed, for said parcel of land in fee simple, clear of all incumbrances at the date of said delivery. The bill further alleges that the acreage has been duly verified, and that the plaintiff’s title to the land is an unincumbered title in fee simple, which she is ready, willing, and able to convey, and has so tendered herself, but the said Mayor and City Council, waiving a formal tender of such deed, assert that she is not vested of said title, because in a certain deed ²⁶ which the plaintiff admits is in her chain of title, and which affects 16 acres, i rood, and 28 perches of said tract, namely, a deed from the executors of John Gibson, deceased, to Henry Grabenhorst, dated October 24th, i860, duly recorded, there is the following covenant: ' “And the said Henry C. Grabenhorst for himself, his heirs, executors, administrators, and assigns, doth hereby covenant with said parties of the first part, and the survivor of them, and the heirs and assigns of the survivor, for the benefit as well of all other purchasers of the remainder of said Chestnut Hill estate, their heirs and assigns, as of the said executors and trustees, and their heirs and assigns, that he will only erect or suffer to be erected a private residence, or residences, of a respectable character thereon, and the necessary outbuildings appurtenant thereto, and that he, his heirs or assigns, will not at any time erect, keep or use thereon any public house or house of amusement or entertainment, or suffer or permit any house upon said premises to be built, or kept, or used for such purpose or any of them, Provided however, that said executors and trustees shall cause to be inserted similar clauses in all other deeds to said purchasers,which they hereby covenant to do." The bill further alleges that the said Mayor and City Council was making the purchase in order to use the land for a city park, and insists that said covenant is so far an incumbrance upon said land as to prevent the city from erecting upon it such structure or structures as are suitable for a public park, and for that reason only is unwilling to accept the title thereto.

The bill further alleges that since said deed was made, the extension of the city limits has brought said land ^within said limits, and that the establishment of a public city park thereon was not in the contemplation of the parties to said deed; that the said restrictive covenant could not have been designed to refer to such a use as a public city park, and that by its true interpretation in the light of conditions existing at the date of the deed, it was only intended to pi'ohibit taverns, or wayside inns, conducted for profit, or houses of amusement or entei' ²⁷ tainment such as usually accompany such places of resort, and which render their immediate neighborhood unsuitáble as places of residence. . The bill further alleges that the said executors had no power to impose such restrictions, and that even if they had such power, yet by the express terms of said covenant it was in no event to be operative unless the same restrictions should be inserted in the deeds to all the purchasers of any part or parts of the Chestnut Hill estate, of which the land conveyed to said Grabenhorst was a part, and that in fact said covenant was not inserted in all said deeds, towit, ist, a deed from said executors to Gottlieb Engel, his heirs and assigns, dated July 6th, 1866, conveying three and one-third acres, part of Chestnut Hill; and 2nd, a deed from said executors to Georgianna Taylor, her heirs and assigns, dated May 9th, 1868, conveying one-half of an acre, part of Chesnut Hill; and that for that reason said covenant was inoperative; and also because the grantors in said deed to Grabenhorst did not covenant in the first conveyance made of any part of said Chestnut Hill estate, nor in all other conveyances thereof that they would exact such covenants from all other purchasers of parts of said tract, and did not covenant with the said Grabenhorst, or any other purchasers of parts of said tract that they, the said grantors held the remaining parts of said tract subject to said restriction, and did not expressly assign to any other purchaser the benefit of the covenant of said Grabenhorst. . The bill further alleges that the said Chestnut Hill tract is no longer rural property, but has been for twenty years past within the city limits, and has to a large extent been cut up into small city building lots upon which are built small frame or brick houses fronting on open streets, and that other streets and avenues in various directions are projected through said tract under ordinances of the Mayor and City Council; in consequence of all which things, said tract is no longer suitable for rural residences, and that it would be unsaleable if its use is restricted by said covenant to that of rural residences, and that the enforcement of said covenant now, even if it were ²⁸ ever binding and applicable, .would be contrary to the principles on which Courts of equity deal with such restrictions. The bill still' further alleges that for more than twenty years continuously an extensive brick yard was operated upon said Grabenhorst parcel, without objection from any of the owners of other parts of the Chestnut Hill tract, and continued in operation until the year 1900, when said establishment was absorbed by the Baltimore Brick Company, and that such continuous use as a brick yard worked an abandonment of said restriction; and that the surrounding land which was not a part of said Chestnut Hill tract was not subject to the same or any similar covenant, and that for this reason it would be inequitable to enforce the said covenant against the plaintiff and so put her said property in competition with other property in the immediate locality which is free from said restriction.

The prayer of the bill is that the Court determine whether the said restrictive covenant is operative at all, and if operative, the true interpretation thereof so far as the rights of the parties to this suit are concerned; and that the contract of sale be- specifically enforced. The defendant in its answer admits the plaintiff’s title as set forth by her and the contract of sale as charged; also that the acreage has been duly verified, but denies the ability of the plaintiff to convey such a title as the contract requires, because of the covenant heretofore transcribed from the deed to Grabenhorst. It admits the intention was to use the land as a part of a public park, and that it refused to complete the contract, only because of its doubt of the right to use the land as a public park with the right to erect thereon such buildings and improvements, as in its judgment should be appropriate in a park, and that it does not desire the rescission of said contract, if upon a construction of said covenant by the Court, it can be assured of the right to use said land free from any restriction imposed by said covenant. The answer neither admits nor denies the power of the executors to impose the said restrictions, leaving that to the ²⁹ Court.

It avers that the restrictions imposed by the covenant in the Grabenhorst deed were imposed likewise on all such parts of the estate of John Gibson, as the executors agreed they should be imposed upon, and denies that even if not so imposed, the covenant in the Grabenhorst deed or the deeds to any other purchaser or purchasers of parts of said Chestnut Hill, were thereby annulled or rendered inoperative. It admits the passage of an ordinance of the defendant for opening Thirty-third street t'20 feet in width, to pass through a part of the Grabenhorst parcel, and that the plans adopted for other street openings in that locality provide for another boulevard to be called “Alameda,” and to run entirely through said Grabenhorst parcel. All other allegations of the plaintiff’s bill are neither denied nor admitted, but are left to the proof. By agreement of counsel, a copy of the advertisement of the sale of the Chestnut Hill estate by the executors of John Gibson was considered as put in evidence, from which it appears that they advertised the Mansion with about acres of ground; “also fifteen sites for rural residences, portions of the Chestnut Hill estate, * * * each from five to ten acres in extent,.and within a walk of three to eight minutes of the York Road Passenger Railway.” Then follows an enumeration of sixteen parcels of which fifteen are described by name, number three containing only 3^ acres, while all the remainder of the fifteen contain from 5 to acres each.

No. 16 is described as a lot of 3 acres bounding on the York road. A copy of the executor’s report of sales is also embraced in said agreement showing in detail to whom, and for what sum, each parcel was sold'. Nos. 7, 8, 9 and 13 being sold to Henry C. Grabenhorst and No. 16 to Gottlieb Engel. The restrictive covenant hereinbefore set out was inserted in the deeds for parcels from No. 1 to No. 15 inclusive, but was not inserted in the deed for No. 16, and all of said deeds except those to Grabenhorst and Engel contain the following recital: “Whereas it was made a condition of said sale on behalf of all purchasers at said sale that the building sites then dis ³⁰ posed of were designed for rural residences only, and that none but private-residences should be erected thereon.” ■ The deed to Engel was dated July 6th, 1866, and the dates of the several deeds for the parcels from No. i to No. 15 ranged from February 3rd, 1866, to October 24th, 1866, which was the date of the deed to Grabenhorst for parcels Nos. 7, 8, 9 and 13.

The deed for the one-half acre to Georgianna Taylor was dated May 9th, 1868, the land being part of a larger parcel, part of Chestnut Hill, which John Gibson had in his life time by a written agreement with Charles R. Taylor, duly recorded, agreed to exchange with said Taylor for. other lands to be conveyed by said Taylor to said Gibson. The agreement of counsel recited that before the consummation of said agreement of exchange of lots Charles R. Taylor conveyed the lot which he agreed to convey- tp said Gibson to Mary Taylor, subject to said ágreement, who in like manner conveyed the same to Georgianna Taylor, and that after said Gibson’s death his executors sold to Georgianna Taylor the half acre described in their deed to her, and that said sale was reported to and ratified by the Orphans’ Court for Baltimore County. The deed to Georgianna Taylor referred to the above-mentioned agreement of exchange of lots between John Gibson and Charles R. Taylor, and set forth that part of the consideration of said deed was that said agreement of exchange was thereby declared null and void, and that the parties thereby mutually released the other from all obligations thereunder. The history of that transaction.as we have detailed it is necessary for a proper understanding of the defendant’s contention that the restrictive covenant was imposed on all such portions of the estate of said Gibson upon which such executors had agreed to impose the same.

It was also agreed that in none of the conveyances through which the plaintiff traces title, to the land in question, is. the covenant in Grabenhorst’s deed referred to. Also that the land described in the deed to Grabenhorst is separated from all the other lands sold by the executors of Gibson, by intervening land not subject to this or any similar restriction, and is surrounded ³¹ on all sides by other lands not subject to the same or similar restrictions. Also that all the